When does “harmless workplace banter” become sexual harassment?

In today's world it’s sometimes difficult to spot what is harmless banter and what is actionable harassment. It pays to know the difference however. In our latest insight update we look at a recent case which is a salutary reminder of the need to know the difference between the two.  The decision of the Labour Court in January 2016 in A store v A worker EDA163 resulted in an award of €15,000 against the employer even though the employer had an anti-harassment policy in place and displayed prominently for all employees to see.

What's sexual harassment and what’s not?

Section 14A(7) of the Employment Equality Acts 1998-2015 (the "Acts") defines sexual harassment as

"any form of unwanted verbal, non-verbal or physical conduct of a sexual nature…which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person".

This includes "acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material".

In this case the Labour Court focussed on the "wide ambit" afforded to the concept of sexual harassment and referred to the definition set out in the Employment Equality Act 1998 (Code of Practice)(Harassment) Order (SI 208/2012) (the "Code of Practice"):

"The essential characteristic of sexual harassment is that it is unwanted by the recipient, that it is for each individual to determine what behaviour is acceptable to them and what they regard as offensive. Sexual attention becomes sexual harassment if it is persisted in once it has been made clear that it is regarded by the recipient as offensive, although one incident of harassment may constitute sexual harassment if sufficiently serious. It is the unwanted nature of the conduct which distinguishes sexual harassment from friendly behaviour, which is welcome and mutual". [emphasis added]

What happened?

Briefly, the facts of this case involved a sales assistant who claimed she had been sexually harassed by male co-workers between February 2010 and November 2012. In particular, one co-worker, Mr A, asked the complainant to go on a "date" with him, to "move in" with him, despite the complainant advising Mr A that she was married and not interested in any form of relationship with Mr A. In evidence, the complainant described a number of evidences where Mr A and his male co-workers would regularly make sexist comments and gossip of a sexual nature directed at her. The complainant told the Court that Mr A spread rumours to the effect that she was having an affair with her Assistant Manager and began uttering a particular sexual expletive on any occasion that a male employee came into the aisle in which the complainant worked.

It’s only a bit of fun…they’re just “young lads”

On informing her manager of the offensive conduct, the complainant gave evidence that she was advised that the type of conversation complained of was "ok, as they [the co-workers] were just young lads". The complainant's manager also gave evidence that on questioning the male co-workers they admitted engaging in sexually explicit conversations, but assured the manager that the conversations were about women in general and were not directed at the complainant personally. While an investigation into the complaints was initiated in November 2012, the complainant was not allowed to be represented by her trade union during the investigation and, as a result, did not participate in it. The complainant instead lodged a complaint with the Equality Tribunal in December 2012 and subsequently appealed its decision to the Labour Court.

Out of time?

First the Labour Court had to consider whether acts of alleged sexual harassment which happened more than six months before the date of the complaint could be investigated or whether they had to be disregarded because they were out of time. The Labour Court found that it could have regard to the earlier incidents dating back to 2010.

The law says that a claim for redress in respect of discrimination or victimisation where the act "extends over a period" must be brought within 6 months of the end of that period. In Hurley v Co Cork VEC the Court confirmed that the law "deals with a situation in which there are a series of separate acts or omissions which, while not forming part of a regime, rule, practice or principle, are sufficiently connected so as to constitute a consortium" and can therefore be treated together as being in time. So the claim was allowed to proceed.

So was it harassment or was it harmless banter?

It was sexual harassment. The key feature of this behaviour, which places it squarely in the "sexual harassment" side of the "banter" fence, was that it was unwanted and unwelcome. In this regard the complainant gave evidence that she approached Mr A on several occasions and asked him to desist from this behaviour, as well as asking a female colleague to speak to Mr A to point out that his behaviour was offensive, but despite these initiatives, the offensive behaviour persisted.

The Labour Court ruled that the complainant was sexually harassed. It pointed out that the statutory definition of sexual harassment includes conduct that creates an "offensive environment" for the complainant, such that the co-workers' comments did not necessarily need to be addressed to or directed to the complainant personally. The Court noted that "most people of normal sensitivity or fortitude" would likely find that conversation of a "sexually explicit nature" creates an offensive working environment.

But had the employer done what it could to prevent it occurring?

The Labour Court then considered whether the respondent employer could avail of the defence set out in Section 14A(2)(a) of the Acts - whether the respondent employer had taken such steps as are "reasonably practicable" to prevent the sexual harassment of the complainant. As part of its assessment, the Court cited another Labour Court decision in A Hotel and a Worker (EDA0915), which held:

"an employer must be conscious of the possibility of sexual harassment occurring and have in place reasonable measures to prevent its occurrence as well as policies and procedures to deal with such harassment…this requires the employer to show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to all employees. Moreover management personnel should be trained to deal with incidents of harassment and to recognise its manifestations".

Overall the Court concluded that the employer had not taken reasonably practicable steps to prevent the sexual harassment of the complainant. Why?

• the Court was not satisfied that the importance of the policy was properly understood by the complainant's manager who was responsible for its implementation;
• the Court noted that the policy was only available in English, which was not the native language of the perpetrators; and
• while the Court acknowledged that the employer had a handbook, that it contained an anti-harassment policy and that the policy was also displayed in the staff area of the store it found that the policy was not "properly or adequately applied in practice".

The Equality Tribunal decision was set aside and the complainant was awarded €15,000 for the effects of discrimination suffered.

What does this mean for Irish employers?

So where the path of normal workplace banter meets the path to sexual harassment, it is clear that the Irish courts will be guided by not only the policy that an employer has in place, but how effectively that policy is implemented. On this basis, it is not enough to have a textbook standard policy sitting on the office bookshelves that can be taken down, dusted off and produced by way of defence to an employee's claim of sexual harassment. Rather, a prudent employer should ensure that:

1. A comprehensive policy on harassment, that adheres to the principles set out in the Code of Practice, is put in place and adhered to;
2. The policy is well known to staff, easily accessible and in a language that is easily understood;
3. The policy is kept under regular review and revised in accordance with  current law and best practice, for example ensuring the scope of the policy extends to employees' social media use;
4. Staff that are responsible for its implementation receive management appropriate and ample training as to its contents; and
5. All investigations into allegations of sexual harassment are conducted swiftly, confidentially and that both the alleged perpetrator and the alleged victim are afforded full and fair procedures, including the right to be accompanied at investigation meetings, the right to be aware of allegations made against them and comment as to their content and, finally, the right to appeal any decision.

For further information, please contact Karen Killalea, Partner or Ailbhe Dennehy, Senior Associate at A&L Goodbody.

Date Published: 3 March 2016